TMI Blog2009 (7) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... judicial review in writ jurisdiction In view of the binding precedents of the circulars issued by the Commissioner of Commercial Taxes, in favour of the assessee this court is of the view that the impugned showcause notice issued contrary to the circulars, is without jurisdiction and it is liable to be set aside and accordingly, set aside and consequently, the petitioner is entitled to the relief sought for in the writ petition. - W.P. No. 21346 of 2007, M.P. No. 1 of 2007 - - - Dated:- 1-7-2009 - MANIKUMAR S. J. V. Sundareswaran for the petitioner R. Mahadevan, Additional Government Pleader, for the respondents ORDER The petitioner has sought for a writ of prohibition, prohibiting the respondents from assessing or levying or collecting the sales tax on the sale of Halls at more than four per cent in view of G.O. Ms. No. 65, CT, dated April 4, 2000 (Not. No. II(I)CT/22(e)/2000 Gazette, dated April 4, 2000 with effect from April 4, 2000) followed by G.O. Ms. No. 33, CT dated March 27, 2002 (Not. No. II(I) CT 19(b-19)/2002 Gazette, dated March 27, 2002, issued under section 17 of the Tamil Nadu General Sales Tax Act, 1959 and the statutory circular under se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Halls is not a confectionary and it is only an ayurvedic medicine. The petitioner has further submitted that under the TNGST Act, a notification was issued in G. O. Ms. No. 65, CT dated April 4, 2000 Notn. No. II(I)/CT/22(e)/2000 Gazette dated April 4, 2000 effective from April 4, 2000 to encourage the use of the other medicines, which states that, makes a reduction in rate of tax from eight per cent to four per cent in respect of the tax payable by any dealer on the sale of homeopathic and ayurvedic medicines. The said notification was cancelled by G.O. Ms. No. 34, CT, dated March 27, 2002 Notn. No. II(I)CT/19(b-25)/2002 Gazettee, dated March 27, 2002 effective from March 27, 2002, reducing the rate of sales tax to four per cent in relation to sale of siddha, unani, homeopathic and ayurvedic medicines , which is in force till the date of filing of the writ petition. The Special Commissioner, by proceedings dated February 28, 2003, in circular D. Dis. Acts. Cell-II/74890/2002, clarified to M/s. Solaimalai Agencies, one of the retailers that Halls is classifiable under entry 5(i)/ Part D of the First Schedule to the Act. However, it is the case of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olaimalai Agencies, the first respondent without application of mind, has proceeded to initiate reassessment proceedings on the basis that Halls is not an ayurvedic preparation and it is only a confectionary, taxable at 12 per cent under the TNGST Act. In these circumstances, the first respondent has issued a notice, dated March 20, 2007 for revision of assessment of turnover on sales of Halls and proposed to revise the assessment at 12 per cent. As the action of the respondent is contrary to law and against the judgment of the apex court, the petitioner instead of submitting their objections to the notice, has preferred the writ petition for a prohibition, against the respondents from levying or collecting sales tax on the sale of Halls at more than four per cent issued earlier. Mr. V. Sundareswaran, learned counsel for the petitioner, submitted that Halls contains (i) pudina, (ii) nilgiri thailam, (iii) narangi thailam, (iv) nimbuka thailam, (v) lemon oil. In addition to the above, it also contains corn syrup. According to him, the constituents of halls tablets are well known in ayurvedic formulations and books and are used as medicines to cure or mitigate ailments, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor's prescription. Reliance was placed on Puma Ayurvedic Herbal's case [2006] 145 STC 200 (SC); [2006] 6 RC 328; [2006] 3 SCC 266. Placing reliance on a decision in Amurtanjan Ltd. v. CCE reported [1996] 9 SCC 413, learned counsel for the petitioner submitted that even if the product contained an ingredient, which is not known to ayurveda, that would not by itself make it non-ayurvedic medicine. According to him, the main criteria for determining the classification as to how the product is put to use by the customers and even if the medicament is palatable, that would not take it out of the entry of medicament. In this context, he relied on a decision in B.P.L.Pharmaceuticals Ltd. reported in [1997] 104 STC 164 (SC); [1995] 77 ELT 485 (SC). The learned counsel for the petitioner further submitted that on June 27, 2003, the petitioner filed an application before the Special Commissioner in form IV under rule 26A for a clarification with regard to the rate of tax for Halls , enclosing the details, such as (i) C licence issued by the drug controller for 2003-04, for manufacture of the List of approved drugs, (ii) renewal of licence, (iii) report of the Central Resea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessment year 2003-04 and the reply, dated September 8, 2005 submitted by the petitioner, agreeing for appropriation of excess tax towards penalty under section 22(2) of the Tamil Nadu General Sales Tax Act and the final order, dated September 28, 2005, of the assessing authority, imposing sales tax at four per cent for the sale of Halls and appropriating the excess sales tax over and above four per cent. towards penalty, learned counsel for the petitioner submitted that when the order of assessment had attained a finality and when the subsequent assessments were also made on the same lines, it is not open to the first respondent to issue a fresh notice for reassessment on the basis of an audit inspection conducted at the office of the first respondent. The learned counsel for the petitioner further submitted that by issuing the impugned notice, the first respondent has abdicated his functions as a quasi-judicial authority under the statute and he cannot be permitted to be influenced by the dictation of audit wing. In this context, he relied on a decision of the Supreme Court in Sirpur Paper Mill Ltd. v. Commissioner of Wealth-tax reported in [1970] 77 ITR 6 (SC) and State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ of prohibition be issued. The first respondent has filed a detailed counter-affidavit. Reiterating the averments and recording his preliminary objections to the maintainability of the writ petition, Mr. R. Mahadevan, learned Additional Government Pleader submitted that the first respondent has issued only a prerevision notice calling for objections from the petitioner, on the basis of the decision of the Supreme Court, which decided the correctness of the order made by the Central Excise Tribunal, Collector v. Warner Hindustan Ltd. reported in [1989] 42 ELT 33 and on the basis of a clarification issued by the Commissioner of Commercial Tax, Chennai, in D. Dis. Acts. Cell-II/ 4980/2002, dated February 28, 2003 (clarification No. 44/2003) issued in the case of M/s. Solaimalai Agencies, who are the distributors, holding that the product Halls is taxable as confectionary at 12 per cent. He further submitted that the Central Excise Department, in its memorandum, dated September 10, 2007, has referred to few decisions Gridharilal Sugar and Allied Industries Ltd. v. Commissioner of Central Excise (Appeals), Indore [1997] 95 ELT 14 (MP), [1999] 56 ELT 9 and [1996] 83 ELT 50 (sic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompany is dealing with the manufacture and sale of chocolates, toffees and confectionary items, etc., including Halls . By G.O. Ms. No. 65, CT, dated April 4, 2000, (Notification No. II(1)CT/22(e)/ 2000 Gazette, dated April 4, 2000), the Government reduced the rate of tax from eight per cent to four per cent in respect of tax payable by any dealer on the sale of homeopathic and ayurvedic medicines. Subsequently, the said notification was rescinded by the Government in G.O. Ms. No. 34, CT, dated March 27, 2002. Another Notification in G.O. Ms. No. 33, dated March 27, 2002, was issued reducing the rate of tax to four per cent on the sale of sidda, unani, homeopathi and ayurvedic medicines. He further submitted that the clarification given by the Commissioner of Commercial Taxes, Madras, under sub-section (1) of section 28A, i.e., as to the correct rate of tax on a particular product, will bind the dealers, who seek for such clarification. If it is a society or association, it would bind all its members. He therefore submitted that when the dealers are at liberty to canvass the applicability of the clarification to the goods manufactured or sold by them before the assessing/appellate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f fact and therefore, it has to be decided only by the statutory authorities. In so far as collection of tax at 12 per cent on the sale of Halls for the assessment year 2003-04, learned Additional Government Pleader submitted that the petitioner-company on a proper understanding of the classification of the goods, has collected 12 per cent tax, and they cannot now contend that Halls is taxable only at four per cent. Placing reliance on a decision in Commissioner of Customs Central Excise v. Charminar Nonwovens Ltd. reported in [2004] 136 STC 356 (SC), learned Additional Government Pleader submitted that in a matter relating to clarification of a commodity, the decision has to be taken by the assessing authority on the facts of each case. Even though a decision might have been taken earlier, but the matter requires re-examination, if certain facts are discovered on further investigation or due to change of law. When intricate technical flaws are involved, it is always proper for the High Court to leave the issue to the assessing authorities and direct the petitioner to canvass the applicability of a circular or clarification issued in relation to the product in question, ins ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not lie to correct the course, practice or procedure of an inferior Tribunal or a wrong decision on the merits of the proceedings. Writ cannot be issued to a court or an inferior Tribunal for an error of law unless the error makes it go outside its jurisdiction. A clear distinction has therefore, to be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coarum non judice and a writ of prohibition will lie to the court or inferior Tribunal forbidding it to continue proceedings therein in excess of jurisdiction. This view was taken following the decision of Regina v. Comptroller-General of Patents and Designs reported in [1953] 2 WLR 760. In Thirumala Tirupathi Devasthanam v. Thallappaka Ananthacharyulu [2003] 8 SCC 134, at paragraph 14, the honourable Supreme Court of India held as follows: 14. On the basis of the authorities it is clear that the Supreme Court and the High Courts have power to issue writs, including a writ of prohibition. A writ of prohibition is normally issued only when the inferior court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication under the Central Excise Tariff Act, 1985. Certain guidelines were directed to be followed by the excise authorities and they are as follows: (a) The perception of the product in popular parlance, whether as medicaments or cosmetics/toilet requisite, the advertising, marketing and the manner in which the product is put up may also be taken into consideration. (b) It may be ascertained that the products claimed to be medicaments, should have substantial therapeutic claims which are not subsidiary in nature and the mode of prescription and use should be similar to that of a medicine/drug. It may be noted that medicaments are normally prescribed in doses, for a limited time, and for specific conditions/ailments. (c) The drug licence may be used as a guide for the classification of a product but not as the determining factor. The classification of a product under Chapter 30 or Chapter 33 may be done as per the Rules of interpretation of the Central Excise Tariff Act, 1985 read with Chapter note 1(d) to Chapter 30 and Chapter Note 2 to Chapter 33 and various judgments mentioned above. In the case of M/s. Solaimalai Agencies, one of the distributors of Halls , in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , The Halls tablets, containing pudina, nilgiri thailam, narangi thailam, nimbuke thailam, lemon oil, etc., used for cold, cough, soar throat and to freshen the breath, sold with brand name Halls mentholyptus falls under item No. 19(i)(b) of Part C of the First Schedule read with Notification No. II (1)/CT/22(e)/2000, dated April 4, 2000 and Notification No. II (1)/CT/19(b-19)/2002, dated March 27, 2002, taxable at four per cent from April 4, 2000. On August 12, 2005, the Assistant Commissioner (CT), Fast Track Assessment Circle IV, Chennai, finding that the petitioner have collected tax over and above four per cent, on the product Halls for the assessment year 2003-04, has issued a pre-assessment notice to disallow that tax already collected and proposed to levy tax under section 12(3)(b) of the Act with reference to the difference between the taxes assessed and taxes paid as per returns. Besides, the assessing authority also proposed to levy penalty under section 22(2) of the Act. Pursuant thereto, the petitioners in their letter, dated September 8, 2005, have admitted the taxable turnover and also remitted the excess tax collected at the rate of ten per cent on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n had collected eight per cent of tax on the sale of Halls and paid to the Government. Hence, the difference of excess collection of tax (eight per cent-four per cent) was recovered as penalty under section 22(2) of the TNGST Act, 1959. (c) The Commissioner of Commercial Taxes, Chennai, in D. Dis. Acts. Cell-II/41975/2003, dated January 2, 2004, has issued clarification No. 3 of 2004, as follows: The Halls tablets, containing pudina, nilgiri thailam, narangi thailam, nimbuke thailam lemon oil, etc., used for cold, cough, soar throat and to freshen the breath, sold with brand name Halls Mentholyptus falls under item No. 19(i)(b) of Part C of the First Schedule read with Notification No. II (1)/CT/22(e)/2000, dated April 4, 2000 and Notification No. II(1)/CT/19(b-19)/2002, dated March 27, 2002, taxable at four per cent from April 4, 2000. (d) Clarification No. 106 of 2004, dated April 6, 2004, shows that Halls is taxable at four per cent with effect from April 4, 2000 and it reads as follows: The Halls tablets containing pudina, nilgiri thailam, narangi thailam, nimbuke thailam, etc., used for cold, cough, soar throat and to freshen the breath, sold with brand nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... product, Acti-V . The notice for revision of assessment, is also based on the circular, dated September 10, 1997 of the Central Excise Department stated supra, where attention was drawn to the decisions in Girdharilal Sugar and Allied Industries Ltd. v. Commissioner of Central Excise (Appeals), Indore [1997] 95 ELT 14 (MP), [1999] 56 ELT 9 and [1996] 83 ELT 50 (sic). The impugned proceedings also proceeds on the footing that simply because of the constituents of pudina and nilgiri are present to such a minor extent, that would not make Halls as ayurvedic medicine and therefore, the preparation does not have any substantial therapeutic claims. There is no indication in the revision of assessment notice that the clarifications issued by the Commissioner of Commercial Taxes, Chennai, in Clarification No. 3 of 2004, dated January 2, 2004 and 106 of 2004, dated April 6, 2004 have been rescinded or not. In the circular, dated September 10, 1997, the Department of Revenue, Ministry of Finance, has directed that all assessments of products claimed to be ayurvedic medicaments under Chapter 30 should be re-examined by the Commissioner of Central Excise, whether manufactured under a drug l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be taken over by M/s. Cadbury India Ltd., with effect from March 30, 2003), classifying Halls range of products under Chapter 1704.10, applicable to the chewing gum base under rule 173B of the Central Excise Rules, 1944. Earlier, the company had cleared Halls by paying excise duty applicable to confectionary, under Chapter 1704.10 under protest. The appeal filed by them against the decision in Collector of Central Exercise v. Warner Hindustan Ltd. reported in [1989] 42 ELT 33 (which is referred to in the impugned order) was pending before the Supreme Court. No materials have been placed before this court as to the course of action taken by the excise authorities after the pronouncement of the judgment, dated August 3, 1999 (Warner Hindustan Ltd. v. Collector of Central Excise [1999] 6 SCC 762). But the order, dated May 28, 1999, passed by the Assistant Commissioner of Central Excise, Bangalore, shows that the company had declared the goods Halls by paying excise duty as applicable to confectionary under sub-heading 17.04 under protest, pending disposal of the civil appeal, which was disposed of on August 3, 1999. Reading of the order, dated August 25, 1999 shows that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atory order passed on the merits, as one of the supporting documents, to come to the conclusion that Halls which contains (i) pudina, (ii) nilgiri thailam, (iii) narangi thailam, (iv) nimbuke thailam, (v) lemon oil as a ayurvedic medicine and issued necessary clarifications to that effect, this court is of the view that it is too late in the day for the respondent to contend that the issue is still pending consideration with the excise authorities and therefore, the assessing authority can reopen the assessment. Further, a perusal of the order made by the Deputy Commissioner (Appeals) First, Commercial Taxes, Jaipur, dated October 31, 2001, in respect of Warner and Lambert India Pvt. Limited (taken over by M/s. Cadbury India Ltd., with effect from March 30, 2003), shows that the appellate authority has upheld the contention of the manufacture and held that, Therefore, it is explicit to say that Halls tablet is one of the ayurvedic medicines and on this levying of taxes required to impose as per available provisions. In the above circumstances, in my opinion, the Halls tablet is not coming in the category of confectionary, but it is coming under the category of the ayurved ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny, viz., M/s. Solaimalai Agencies, on January 2, 2004, it is stated that pursuant to the Notification No. II(1)CT/22(e)/2000 Gazette, dated April 4, 2000 with effect from April 4, 2000 and Not. No. II(1)/CT 19(b-19)/2002 Gazette, dated March 27, 2002, the product Halls is taxable at four per cent with effect from April 4, 2000. It is also to be noted that the above clarification was also applied by the Commissioner, Commercial Taxes Department, in his assessment proceedings in TNGST.5162095/2001-02, dated March 15, 2004 and the tax collected over and above four per cent, equivalent to ₹ 19,15,046 was appropriated towards penalty under section 22(2) of the TNGST Act, 1959. It is also evident from the materials that no appeal has been preferred against the said order and it has become final. In the absence of any further clarification, cancellation of the earlier circulars issued, in respect of the manufacturer and distributor, M/s. Solaimalai Agencies, whether it is still open to the assessing authority to fall back on an earlier circular, dated February 28, 2003 issued in respect of a distributor, by which, it was clarified that Halls is only a confectionary and taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax on any goods. It seems that the purpose of inserting section 28A was that some businessmen wanted to know their tax liability, so that they could make financial and other arrangements accordingly. In a business, a businessmen has to do planning so that he can earn profits. For doing such planning, he obviously would like to know what would be his tax liability so that he can take it into account when doing his financial planning for the business. Hence, for the abovesaid purpose, he can apply to the Commissioner to clarify any point regarding the rate of sales tax on a taxable commodity. In the above reported judgment, the Division Bench, paragraphs 28 and 29 has further held as follows (pages 108 and 109 in 140 STC): 28. As regards sub-section (3) of section 28A, in our opinion this provision only means that when the sales tax authorities are fixing the rate of tax in their executive capacity, they shall follow the circular of the Commissioner under section 28A. However, when the sales tax authorities are acting in a judicial or quasi-judicial capacity, in our opinion, they cannot be bound by the order of the Commissioner, because to take a contrary view would mean int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t would be open to the another quasi-judicial authority to simply ignore the clarifications issued earlier and also the previous revision of assessment, dated September 28, 2005 and propose to make a fresh assessment, falling back on an earlier clarification of the year 2003, issued in respect of a distributor of Halls . If according to the assessing authority, the product Halls is not meant to be an ayurvedic product, then what is the effect of clarifications issued by the Commissioner for Commercial Taxes, Chennai, who took into consideration the ingredients of the product and issued Clarification No. 3 of 2004, dated January 2, 2004, which reads as follows; The Halls tablets, containing pudina, nilgiri thailam, narangi thailam, nimbuke thailam, lemon oil, etc., used for cold, cough, soar throat and to freshen the breath, sold with brand name Halls Mentholyptus fall under item No. 19(i)(b) in Part C of the First Schedule read with Notification No. II(1)/CT/22(e)/2000, dated April 4, 2000 and Notification No. II(1)/CT/19(b-19)/2002, dated March 27, 2002, taxable at four per cent from April 4, 2000. Change of opinion , means a change in the conclusion of the assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cent (w/w) and pudina 1 to 2 per cent (w/w), were already available with the Revenue. Only after examining the ayurvedic and therauptic value of the ingredients contained in the product Halls , the Revenue has issued clarifications to the petitioner, holding that the product is assessed to tax at the rate of four per cent from April 4, 2000. The admissibility of the claim had already been considered by the Revenue, when they appropriated the excess tax collected by the assessee, towards penalty under section 22(2) of the Act and therefore, it is not open to them to contend that because of the presence of minor extent of the above ingredients, the product cannot be claimed as a ayurvedic medicine, as the preparation does not have sustain therauptic value, and therefore, it requires revision of assessment. Thus it is evident that the assessing authority has formed a prima facie opinion on the same set of facts and law and there is no change of law or discovery of any new fact, which he could not have considered at the time of initial assessment. It could be seen from the revised assessment order, though the assessee had collected 12 per cent tax on the goods, i.e., in the word ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that the beneficial circular issued by the Commissioner of Commercial Taxes, Chennai, in respect of manufacturer and distributor, respectively were already applied and that they were also directed to pay penalty under section 22(2) of the TNGST Act, for excess collection over and above four per cent applicable to the product Halls . A bare reading of the circulars, shows that the ingredients of the product Halls tablets and their effect were duly taken note of by the Commissioner of Commercial Taxes, Chennai. The notifications in unambiguous terms read that Halls tablets , contains pudina, nilgiri thailam, narangi thailam, nimbuke thailam, lemon oil, etc., used for cold, cough, soar throat and to freshen the breath, sold with brand name Halls Mentholyptus falls under item No. 19(i)(b) in Part C of the First Schedule read with Notification No. II(1)/CT/22(e)/2000, dated April 4, 2000 and Notification No. II(1)/CT/ 19(b-19)/2002, dated March 27, 2002, taxable at four per cent. from April 4, 2000. When the beneficial circular has been applied on earlier occasions, the reasons adduced for revision of assessment on the basis of a decision in Collector of Central Excise v. Wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he formula may not be as per the text books but a medicament can also be under a patented or proprietary formula. The main criteria for determining classification is normally the use it is put to by the customers who use it. The burden of proving that Banphool oil is understood by the customers as an hair oil was on the Revenue. . . In Naturalle Health Products (P) Ltd. v. Collector of Central Excise, Hyderabad reported in [2003] 1 RC 952; [2004] 9 SCC 136, the Supreme Court considered the case of a manufacture of Vicks medicated cough drops and Vicks Vaporub throat drops and manufacture of Sloan's Balm and Sloan's Rub , regarding the classification of the product. Their appeals were allowed and the product manufactured were clarified as medicine under the Central Excise Tariff Act. In the reported judgment, the Supreme Court followed an earlier decision in Richardson Hindustan Limited v. Collector of Central Excise [1988] 35 ELT 424 (Trib) and at paragraph 41, it is held as follows (page 969 in 1 RC): 41. We are also of the opinion that when there is no definition of any kind in the relevant taxing statute, the articles enumerated in the tariff Schedules must be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces, popular sense theory has to be applied, i.e., sense which the people are conversant with the subject-matter, with which, the statute is dealing would attribute to it. It is well-settled that the correct principle of construing the meaning of entries in a taxing Act, like the Sales Tax Act is to find out what transaction, its language, according to its natural meaning, fairly and squarely hits and not to assume what was intended to be done. What is relevant is not the dictionary meaning, but how the entries are understood in common parlance specially in commercial circles. It is the contention of the respondents that Halls is a confectionary. In Annapurna Biscuit (Mfg.) Co. v. State of U.P. [1975] 35 STC 127 (All), the Allahabad High Court has explained what confectionary means and it reads hereunder (page 128 in 35 STC): . . . Confectionary is essentially a sweetmeat. In certain preparations to the sweet base are added chocolate, fruits, nuts and peanuts, eggs, milk products, flavours and colours. . . It is well-settled law that when Legislature itself gives the meaning of a term by a definition or Explanation, it has to be adopted in interpreting it whatever ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnai [2005] 140 STC 97 (Mad). As regard the decision in Commissioner of Customs Central Excise v. Charminar Nonwovens Ltd. reported in [2004] 136 STC 356 (SC), there cannot be any quarrel over the principle that in the matter relating to commodity classification, it has to be decided on the facts of each case and if any intricate technical issues are involved, it would be appropriate to direct the assessee to agitate his grievance before the statutory authority. But in the given case, except referring to a judgment in Gridharilal Sugar and Allied Industries Ltd. v. Commissioner of Central Excise (Appeals), Indore reported in [1997] 95 ELT 14 (MP), [1999] 56 ELT 9 and [1996] 83 ELT 50 (sic), and some orders referred to in the Central Excise Circular, dated September 10, 1997, no fresh materials seemed to have been discovered on further investigation or for that matter there is a change in the legal position. Even the changed legal position as regards the classification of the product Halls , as held by the Central excise authority in his order, dated August 25, 1999, has been taken into consideration by the Commissioner of Commercial Taxes, Chennai, while issuing clarification ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the TNGST Act) are binding primarily on the basis of the language of statutory provisions buttressed by the need of adjudicating officers to maintain uniformity in the levy of tax/duty through out the country and on the basis of promissory estoppel and when a circular remains in operation, the Revenue is bound by it and cannot be allowed to plead that it is not valid or contrary to the statute. In the case on hand, as stated supra, the notifications issued to the petitioner, holding that, Halls as a medicament, leviable at four per cent as per the provisions of the TNGST Act are in operation and therefore, the Revenue is bound by the same and in such a view of the matter, it is not open to the first respondent, to issue the impugned notice for revision of a completed assessment. Applying the said judgments to the facts of this case, when the Commissioner of Commercial Taxes, Chennai, has issued the clarification Nos. 3 and 106 of 2004, dated January 2, 2004 and April 16, 2004, respectively and revised the assessment on earlier occasion and concluded the penalty for excess collection of tax over and above four per cent, treating Halls as ayurvedic medicine, another assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no jurisdiction or had purported to usurp jurisdiction without any legal foundation. 21. That being so, the High Court was not justified in dismissing the writ petition at the initial stage without examining the contention that the show-cause notice issued to the appellant was wholly without jurisdiction and that the Registrar, in the circumstances of the case, was not justified in acting as the 'Tribunal'. In Union of India v. Kunisetty Satyanarayana reported in [2006] 12 SCC 28, the Supreme Court, held that: 15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet. 16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter. In view of the binding precedents of the circulars issued by the Commissioner of Commercial Taxes, in favour of the assessee and for the reasons stated supra, this court is of the view that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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